Torts Flashcards
a duty of care is generally owed to
- viable fetus
- 3rd party for whose economic benefit a legal or business transaction is made
- discovered trespasser
a child is required to conform to a higher standard of care than that of a child of like age, education, intelligence, and experience when the child engages in..
an activity that is normally one in which only adults engage
what must be shown by P under the attractive nuisance doctrine
- dangerous condition present on the land of which the owner is or should be aware
- owner knows or should know that young persons frequent the vicinity of this dangerous condition
- the condition is likely to cause injury (dangerous because of the kid’s inability to appreciate the risk
- expense of remedying the situation is slight compared with the magnitude of risk
under traditional liability rules… a landowner owes a duty to warn of or make safe known dangerous conditions on the land of which the licensee is…
NOT aware
under traditional liability for landowners, a landowner owes an invitee…
general duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee AND duty to make reasonable inspections to discover dangerous conditions and make them safe
when can a person lose his invitee status
if he exceeds the scope of the invitation (goes into a portion of the premises where his invitation cannot reasonably be said to extend)
firefighter’s rule
police officers and firefighters are treated like licensees
and cannot recover for landowner’s failure to inspect or repair dangerous conditions that are an inherent risk of their law enforcement or firefighting activity
negligence per se
- P must be in the class intended to be protected by the statute
- statute must have been designed to prevent the type of injury suffered
a bystander who witnesses the ∆ negligently injuring another can recover for NIED in most states by showing…
- close relationship between the bystander and the person injured
- bystander’s presence at the scene of the injury AND
- bystander’s observation or perception of the event
- bystander no longer required to be in the zone of danger
one who acts for the benefit of another has a duty to…
continue the assistance
transferred intent doctrine applies to
- assault
- battery
- false imprisonment
- trespass to land
- trespass to chattels
transferred intent doctrine
allows an intent to commit a tort against one person to be transferred to the committed tort or the injured person
shopkeeper’s privilege
- must be reasonable belief as to the fact of theft
- detention must be conducted in a reasonable manner and nondeadly force can be used
- detention must be only for a reasonable period of time and only for the purpose of making an investigation
IIED requires proof of
- act by the ∆ amounting to extreme and outrageous conduct
- intent on the part of the ∆ to cause P to suffer severe emotional distress or recklessness as to the effect of ∆’s conduct
- causation
- damages (severe emotional distress)
difference between trespass to chattels and conversion
seriousness of the interference with the P’s possession
when may a person use deadly force in self defense
if she reasonably believes she is in danger of serious bodily injury
to assert the defense of property, a ∆ using force against another may not…
use force against one with a privilege to enter the property
the “but for” test for actual cause applies to…
concurrent causes
eggshell-skull P rule
- applies in both direct and indirect cause cases
- unforeseeable severity of the P’s harm does not relieve the ∆ of liability
in a negligence action, the P cannot recover ___ damages
presumed
partial comparative negligence jurisdiction
P’s recovery will be barred if her negligence passes a threshold level, either 50% or 51%
for assumption of risk to be available as a defense, P must have
known of the risk and voluntarily assumed it
for a design defect in a products liability action, P must show…
a less dangerous modification or alternative for the product was economically feasible
to prove breach of duty in products liability action based on negligence, P must show…
∆ supplied a defective product
in contrast to products liability cases based on negligence, those based on strict liability do not require…
suppliers have an opportunity to inspect
in products liability case based in strict liability, P may recover…
personal injury damages and property damages
how is actual malice defined for purposes of the constitutional law of defamation
knowledge that the statement was false, or reckless disregard by the ∆ as to the statement’s trust or falsity
damages for defamation will be presumed if
- it disparages P in the conduct of her business or occupation
- asserts that P is suffering from a loathsome disease
- alleges the P has committed a serious crime or crime of moral turpitude OR
- imputes unchastity to a female P
publication of facts facing P in a false light and public disclosure of private facts about P require P to show…
publicity
what must be shown for a qualified privilege to apply for defamatory statements
the statement must be reasonably relevant to the interest being protected
∆ engaging in an abnormally dangerous activity may be liable only to…
foreseeable Ps injured as a result of the dangerous propensity of the activity
principal will be vicariously liable for the tortious acts of her independent contractor if…
the independent contractor is engaged in inherently dangerous activities OR the duty is non-delegable
respondeat superior
makes employers vicariously liable for the torts of employees
- does not apply to independent contractors
for purposes of private nuisance, the interference with P’s use of the land is unreasonable only if…
the severity of P’s inflicted injury outweighs the utility of ∆’s conduct
false imprisonment
i) act or omission to act on ∆’s part that confines or restrains P to a bounded area (may be directed against P’s property if its effect is to restrain P from leaving)
ii) intent on the part of the ∆ to confine or restrain P to the bounded area
iii) causation
indemnity is available in vicarious liability situations where one party…
is held liable for damages caused by another simply because of his relationship to that person
inentional misrepresentation or fraud
i) misrepresentation by ∆
ii) scienter (involves ∆’s state of mind and requires P to show that ∆ made the statement knowing it to be false or made it with reckless disregard as to truth or falsity)
iii) intent to induce P’s reliance on the misrepresentation
iv) causation (actual reliance on the misrepresentation)
v) justifiable reliance on the misrepresentation
vi) damages
as a general rule, no legal duty is imposed upon any person to affirmatively act fro the benefit of others, however, one who gratuitously acts for the benefit of another while under no duty to do so, is then under a duty to…
act as a reasonable person
recovery in a wrongful death action is allowed only to the extent that the deceased could have…
recovered in a PI action had he lived
in jurisdictions following traditional rules for landowners, the nature of a duty of an owner of land to those on the premises depends on…
the legal status of the P in regard to the property
invitee
person who enters the land in response to an express or implied invitation of the landowner
- a person will lose invitee status when he exceeds the scope of the invitation (goes somewhere on land without permission)
duty owed to invitees under traditional rules
duty to make reasonable inspections of the area to discover dangerous conditions and make them safe
publicity is required in which of the invasion of privacy brances
- publication of facts placing P in a false light
- public disclosure of private facts about P
for intentional misrepresentation, a ∆ carries a higher duty if…
she holds a fiduciary relationship with the P
actual malice for the purposes of the constitutional law of defamation is defined as…
knowledge that the statement was false, or reckless disregard by ∆ as to the statement’s truth or falsity
inducement
additional facts a P pleads and proves for a statement not defamatory on its face
the defamation defense of absolute privilege requires the statement made during judicial proceedings bear a…
reasonable relationship to the proceedings
if defamation involves private figures but a matter of public concern there can be…
NO liability without fault
in an action for invasion of the right to privacy, the P need only plead _____ or _____ as damages
emotional distress or mental anguish
colloquium
pleading additional facts to show a defamatory statement referred to a P
in an action for fraud or deceit, with regard to the element of misrepresentation, the ∆ cannot…
actively conceal a material fact
a public official, such as a mayor, may not recover for defamatory words relating to his official conduct unless there is clear and convincing proof that…
the statement was made with actual malice
invasion of privacy based on publication by ∆ of facts placing P in false light
i) publication of facts about P by ∆ placing P in a false light
ii) false light must be something that would be highly offensive to a reasonable person under the circumstances
products liability based on strict liability
i) ∆ is a commercial supplier
ii) ∆ produced or sold a defective product
iii) the defective product was the actual and proximate cause of the P’s injury AND
iv) the P suffered damage to person or property
to prove breach of duty in products liability based on negligence the P must show…
i) negligent conduct by the ∆ leading to
ii) the supplying of a defective product by the ∆
BUT a dealer who buys from a reputable manufacturer with no reason to anticipate the product is dangerous need only make a cursory inspection of the good to avoid liability for manufacturing defects
